QB/2000/PTA/394
IN THE HIGH COURT
QUEEN’S BENCH DIVISION

Royal Courts of Justice
London

Wednesday, 1st March, 2001
B e f o r e:

MR. JUSTICE McCOMBE

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B E T W E E N:

C
Claimant

and
(1) SOUTH LONDON AND MAUDSLEY
HOSPITAL NATIONAL HEALTH SERVICE
TRUST
(2) LONDON BOROUGH OF LAMBETH
Defendants

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Tape transcription by Smith Bernal Ltd
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MR. S. SEMLETT appeared on behalf of the Claimant.

MR. S. KOVATS appeared on behalf of the First Defendant.
MR. J. WATERS appeared on behalf of the Second Defendant.
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J U D G M E N T
Wednesday, 1st March, 2001

J U D G M E N T

MR. JUSTICE McCOMBE:  I have before me an adjourned application by an intended claimant, (whom I shall call “C”) for permission to appeal  from an order of Master Ungley made on 25th September 2000, whereby the learned Master refused C’s application under Section 139(2) of the Mental Health Act 1983, (which I shall “the Act”) for leave to bring proceedings against the proposed defendants. The proposed defendants are, first, South London and Maudsley Hospital National Health Service Trust and, secondly, the London Borough of Lambeth.  

	The learned Master also had before him applications by the intended defendants for orders striking out the proposed Particulars of Claim and/or summary judgment under part 24 of the CPR.  The learned Master refused permission to appeal on the grounds that he was not satisfied that the matter warranted full investigation, or that the case warranted allocation of further court resources under the overriding objective under the CPR.  

Application for permission to appeal was also refused on paper by Holland J., who stated that he could not discern a real prospect of success for the appeal, nor that there was some other compelling reason why the appeal should be heard.  In exercising the power given by the rules, the learned Judge also stated that he had regard to the overriding objective. 

The application for permission was renewed orally before me, and the persuasive arguments adduced by Mr. Semlett for C on that occasion led me to adjourn the application to come on on notice to the intended defendants, with the appeal to follow if leave were granted.  That adjourned application now falls for disposal, and it was agreed that I should treat the arguments as being adduced on both the application and the appeal together.

	C’s intended claim is for damages for false imprisonment and for negligence arising out of his detention by the First Defendants on the instigation of the Second Defendant for 28 days from 31st January 2000.  Section 139 of the Act provides as follows:

“(1)  No person shall be liable, whether on the ground of want of jurisdiction or any other ground, to any civil or criminal proceedings to which he would have been liable apart from this section in respect of any act purporting to be done in pursuance of this Act, or any regulations or rules made under this Act, but if or in pursuance of anything done in the discharge of functions conferred by any other enactment on the authority having jurisdiction under part 7 of this Act, unless the act was done in bad faith or without reasonable care.

(2)  No civil proceedings shall be brought against any person in any court in respect of any such act without the leave of the High Court, and no criminal proceedings should be brought against any person in any court in respect of any such act except by or with the consent of the Director of Public Prosecutions.”

	I can omit subsection (3).  

“(4)  This Section does not apply to proceedings against the Secretary of State, or against a health authority or special health authority, or against a National Health Service trust established under the National Health Service and Community Care Act 1990.”

	The arguments before the learned Master and to a large extent before me have proceeded on the basis that as a pre-condition of bringing proceedings C does need the leave of the Court under Section 139(2).  It has been pointed out, however, that the First Defendant is a National Health Service Trust within the meaning of Section 139(4) and that, therefore, on the face of it, permission seems not to be required.  There was a suggestion before me that it was perhaps in doubt whether that provision applied to potential vicarious liability, but the matter was not substantially pursued.  It has nonetheless been agreed that I should deal with the argument with regard to the First Defendant’s position on the basis that Section 139 does potentially apply, or, alternatively, that the application to strike out the Particulars of Claim is before me in order to determine the issue of whether there is a proper case falling for investigation against that defendant. If I conclude that there is no such proper case, I should refuse leave under Section 139, or, alternatively, I should indicate that I would strike out the proceedings under the CPR in issue, if leave under the Act is not required.  It was accepted that for practical purposes the tests in law and the application of my discretion under those tests fell to be resolved essentially identically.  

The circumstances of the proposed claim arise in this way.  Before setting those out, however, I should observe, of course, that what I recite is on the basis of presently available evidence consisting principally of material from statements furnished by officers of the Defendants on an earlier Judicial Review application.  However, it is not suggested on behalf of C that any part of that material is seriously in issue.

	C is a man of 38 who has had a history of mental illness, and he has been the subject of in-patient confinement for at least one period in 1999. On Friday 28th January 2000 he attended at the First Defendant’s Lewin Road Mental Health Resource Centre as part of his care plan following his discharge from hospitalisation in 1999.  He was seen by a Dr. Pathe and a Psychiatric Nurse, Mr. Tom Harrison, employed by the First Defendant, on the basis that he wanted some respite treatment as a voluntary patient in hospital.  Dr. Pathe and Mr. Harrison wanted C to be seen also by a Dr. Gupta, and they both considered the possibility of admitting C for treatment compulsorily under Section 3 of the Act, under a formal admission for treatment.  

Under that provision a patient may be detained for a period of up to six months, and that detention is renewable.  However, before admission can be effected under that section, it is necessary for the patient’s nearest relative to be consulted, and no application for admission for treatment can be made by the statutory applicant, who is an approved Social Worker, if that relative had notified the approved Social Worker or the Local Social Services Department that he or she objects to the application being made.

	Mr. Semlett for the Claimant accepted before me that C was at this stage displaying considerable irrationality and that his conduct could reasonably be taken by the medical staff as potentially dangerous to himself or to others.  

	In this case one of the medical team, Mr. Harrison, spoke to Miss Wright, an approved Social Worker for the purposes of the Act, with a view to a proposed Section 3 admission, and told her of the view that had been taken that C had, in Dr. Gupta’s words, “a need for treatment” – see page 86 of the bundle before me.

	Thereafter the approved Social Worker indicated that C’s mother, the nearest relative for these purposes, objected to the application. Therefore, says Dr. Gupta, he did not write up a recommendation for admission for treatment at that stage.  The team did consider apparently an application for admission of C for assessment under Section 2 of the Act, or under Section 4, together with an application to take the appropriate steps under the Act to override C’s mother as the nearest relative. Section 2 enables detention of a patient in appropriate circumstances for assessment for a period of 28 days.  Section 4 enables emergency detention for 72 hours.  

The Second Defendant’s approved Social Worker advised that it would not be possible to override C’s mother as nearest relative within the 72 hour detention period permitted under Section 4.  Miss Wright, the approved Social Worker, inquired whether admission under Section 2 would be possible.

	The position was discussed with C, who refused voluntary in-patient admission at that time, but agreed that he would attend for such admission on the following Monday, 31st January.  That appears to me to be of some importance in relation to the events that followed.

	Dr. Gupta told him that if he did not agree to voluntary admission then, the team would have to “section” him under the Act.  Apparently physical circumstances at the Lewin Road Centre also apparently prevented a more formal action being taken that evening.

	C then left the Centre and returned to another centre on the Monday, when the authorities had expected him to submit to voluntary admission as he had indicated he would at the end of the previous week.   But again he expressed unwillingness to be admitted in that way.  He became violent and aggressive when confronted with possible compulsory admission.  He was told he would have to be detained under common law powers until application for admission was completed.  

Thereupon Dr. Gupta completed a recommendation for admission under Section 2 of the Act, which appears at page 73 of the bundle before me.  It is headed “Medical recommendations of admission for assessment, Mental Health Act 1983 Section 2.”

“I last examined this patient on 28th January 2000.  I had previous acquaintance with the patient before I conducted that examination.”

	Then he states his approval under the Act as a relevant practitioner.  He said:

“I am of the opinion (a) that this patient is suffering from a mental disorder of a nature or degree which warrants detention of the patient within a hospital for assessment;  and (b) that this patient ought to be so detained (1) in the interests of the patient’s own health, (2) in the interests of the patient’s own safety, (3) with a view to the protection of other persons, (4) that informal admission is not appropriate to the circumstances for the following reasons.   The patient is known to suffer from schizophrenic illness.  He has been extremely paranoid for the last few months.  He talks about evil spirits in his body, and holds other people responsible for this.  He states that he has acquired a gun to deal with the problem.  He is not willing to stay in hospital informally.”

	It is then signed and dated.

	The second medical recommendation that was completed on that occasion was from Dr. McManus.  Having stated a similar assessment for the purposes of the statutory criteria, that the mental disorder warranted detention and that the patient ought to be detained for his own safety and for his own health reasons, the Doctor states this:

“He has a long history of schizophrenic illness.  He is troubled by persecutory delusions of spirits affecting both day and night.  He says if he had a gun it would be beneficial in order to shoot the spirits.  He denies possession of a gun.  He is without insight and needs admission for assessment.”

	On the basis of those recommendations, the Second Defendant’s approved Social Worker on this occasion – a different lady from the previous occasion – Miss Thompson, made the application under Section 2 to the Managers of the First Defendant’s hospital for C’s admission for assessment, and he was so admitted.  

Mr. Kovats for the First Defendant accepts that the path that had been proposed for C’s admission under Section 3 on the previous Friday was blocked by the stance of C’s nearest relative, and on the Monday it was still appreciated that the Section 3 route was still blocked for that same reason.  But, he submits, nonetheless this was clearly a proper case for action under Section 2 in any event, made independently by those involved in charge of the situation on 31st January, which had changed from the previous Friday, when C had indicated he would be willing to submit to voluntary admission.  

Mr. Kovats submits that in those circumstances C has no real prospect of succeeding with the proposed case that the admission was not a proper one under that Section, quite irrespective of what may have been the provisional decision on the previous Friday.  

Mr. Semlett’s submission for the Claimant is that C’s detention on 31st January and thereafter was unlawful because, first, for some hours before formal admission on the Monday no admission under the Act had been effected, and that when the Section 2 admission was eventually made, it was not a genuine admission under that Section at all, because it was only effected to get round the bar to the Section 3 action.

	He submits that the action taken, in consciously circumventing the intended Section 3 admission, amounted to “bad faith” or at least lack of “reasonable care” on the part of the Defendants for the purposes of Section 139(1) of the Act.  In making that submission Mr. Semlett does not contend that the action taken was done malevolently or in any sense other than in what was perceived to be the best clinical interests of C.  It is not sought to impugn the clinical judgments made.  He simply submits that the action was taken in full consciousness of the obstruction to Section 3 admission, and knowingly in an unlawful manner.

	Working first, as I was invited to do by all parties, upon the basis that Section 139 applies to both Defendants, I must decide whether leave to begin the intended proceedings under Section 139(2) should be given.  The relevant test to be applied can be found in a judgment of the Court of Appeal, and in particular in the judgment of Sir John Donaldson M.R. in Winch v. Jones [1986] QB 296, in particular at page 304F and following, where the learned Master of the Rolls had considered various tests or approaches that had been proffered by counsel in that case, and then goes on to say this:

“In my judgment, none of those approaches is directly applicable to the jurisdiction under Section 139. The vexatious litigant suffers from an aberration which leads by its very nature to attempts to harass others by litigation. This is not necessarily true for those who are subject to Section 139, and a different approach is therefore required.  I would also reject the prima facie case approach adopted by the Judge, because this leads inevitably to a full dress rehearsal of the claim and a defence, as indeed occurred in this case, and that is quite inappropriate, in my judgment, to an application for leave to begin proceedings.

Furthermore, as in the case of Judicial Review, at the stage at which leave is sought, the applicant may well have reasonable suspicions that there has been a failure to exercise reasonable care, but be quite unable to put forward a prima facie case in the absence of discovery.  If I had to adopt an analogous approach, that which in my judgment would be most appropriate is the one adopted in the context of Judicial Review, but I think that Section 139 is sui generis and an individual approach is required.  Parliament must be deemed to have been aware of the jurisdiction of the Court to strike out a claim under RSC Order 18 Rule 19, and to that intended to provide those who operate under the Mental Health Act with some further protection.

It by no means follows from this that the applicant must show a case which is far stronger than one which could be struck out because whereas Order 18 Rule 19 requires the defendant to take the initiative, Section 139 protects the defendant unless and until the applicant obtains leave.  This in itself is an added protection of considerable value. As I see it, the Section is intended to strike a balance between the legitimate interests of the applicant to be allowed at his own risk as to costs, to seek the adjudication of the Courts upon any claim which is not frivolous, vexatious or an abuse of process, and the equaly legitimate interests of the respondent to such an application not to be subjected to the undoubted exceptional risk of being harassed by baseless claims by those who have been treated under the Act.  

In striking such a balance, the issue is not whether the applicant has established a prima facie case, or even whether there is a serious issue to be tried, although that comes close to it.  The issue is whether, on the material immediately available to the Court, which of course can include material furnished by the proposed defendant, the applicant’s complaint appears to be such that it deserves the fuller investigation which would be possible if the intended applicant is allowed to proceed.”

	To that test one can add and bear in mind the gloss suggested by Farquarhson L.J. in considering and refusing an application for leave to appeal to the Court of Appeal against a judge’s refusal at leave under Section 139(2) in the case of James v. London Borough of Havering (1992) Butterworth’s Medico-Legal Reports page 1, and in particular at page 4, where the learned Lord Justice said this:

“The point of that Section” – Section 139(2) – “as it seems to me, is to protect a Social Worker or medical witness from the consequences of a wrong detention made in purported compliance with this Act.  Section 4, as already observed, deals with emergencies, where the person concerned had to decide the matter quickly for the safety not only of the patient but of the persons living at the same address, and indeed of anyone else who may be involved.  It is always recognised that when a decision of that nature has to be made to some extent in a hurry, it is possible to be wrong.  Section 139, which repeated earlier legislation of this nature, is designed to protect a witness making that decision, provided they act in good faith and with reasonable care. To that extent it seems to me that the Section goes beyond the effect referred to by Sir John Donaldson in Winch v. Jones, to which I have just made reference.  It is not only protection against frivolous claims.  It is also a protection from error in the circumstances set out in the subsection.”

	One must of course note and bear in mind that that statement was obiter dictum and was dealing particularly with emergency admission under Section 4 rather than Section 2 of the Act.

	In those circumstances, Mr. Semlett submits that the case does deserve the fuller investigation that is envisaged by the test in Winch.  He does not, as I have said, contend that the clinical decisions taken by the doctors on 31st January were negligent or inaccurate;  he simply submits that once the decision had been taken on that day to admit under Section 3, the “Rubicon had been crossed”, and it was not open any longer to the Defendants to take the alternative course of admission under Section 2.  He submits that the actions of the doctors and the social workers, on the Friday and Monday respectively, cannot be looked at in isolation, and must be examined as a coherent whole.

	Before dealing with that submission in detail, I should say in parenthesis that it seems to me that, in considering whether to grant leave under Section 139(2), the question of the “overriding objective” under the Civil Procedure Rules has no application.  That concept, introduced by Part 1 of the Rules, directs how decisions to be taken under the Rules are to be approached. Those Rules cannot, and do not to my mind, direct how a discretion arising under an entirely different statute is to be exercised.  The position is, however, different when later I come to the alternative question as to whether the intended proceedings ought in due course to be struck out, or whether judgment would fall to be given for the intended defendants under Part 24 of the Rules.  

In my view, the determination of the present question is to be approached by a careful examination of how this Act operated in the circumstances of the present admission, bearing in mind the test set out in Winch, with the gloss suggested by Farquarhson L.J, so far as applicable.  C was purportedly admitted, as I say, under Section 2. Thus, the question is whether he has shown a case requiring fuller investigation that that admission was unlawful.  The admission was made on the application of Miss Thompson, the relevant approved social worker employed by the Second Defendant, considering the position confronting her on 31st January 2000 and not that which confronted her colleagues on 28th January, a few days earlier.  She acted because she must have perceived herself to be under a duty to apply for C’s admission.  That duty would have arisen under Section 13 of the Act, which reads in subsection (1):

“It shall be the duty of an approved social worker to make an application for admission to a hospital or a guardianship application in respect of a patient within the area of the local Social Services authority by which that officer is appointed, and in any case where he is satisfied that such an application ought to be made and is of the opinion, having regard to the wishes expressed by relatives of the patient or any other relevant circumstances that it is necessary and proper for the application to be made by him.”

	Clearly, in my view, Miss Thompson must have considered the fact that C’s nearest relative did not agree to C’s admission under Section 3, but she had before her the recommendations by the two doctors.  Section 2 enables an application to be made on the grounds that – I read from subsection (2):

“(a)  He is suffering from mental disorder of a nature or degree which warrants the detention of the patient in a hospital for assessment, or for assessment followed by medical treatment for at least a limited period;  (b) he ought to be so detained in the interests of his own health or safety or for the protection of other persons.

	Clearly on the facts Miss Thompson was entitled, in my view, to take the opinion that C’s mental disorder warranted detention for assessment or for assessment followed by medical treatment. She had before her the recommendations of two registered medical practitioners, stating that such detention was warranted. I also bear in mind the criteria for admission for assessment and treatment set out in the Code of Practice promulgated under Section 118 of the Act, and there seems to be no doubt to my mind that at least three of those pointers as set out in Section 5(2) of the Code apply in this case, namely:

“(a) The diagnosis and prognosis of a patient’s condition is unclear;  (b) the need to carry out an in-patient assessment in order to formulate an in-patient treatment plan …  (e)  the condition of a patient who has already been assessed and who has been previously admitted compulsorily under the Act is judged to have changed since the previous admission, and further assessment is needed.”

	It is right to note that, in paragraph 5(4) of the Code it is pointed out that decisions should not be influenced by a possibility that a patient’s nearest relative objects to admission under Section 3.  I do not, however, believe it to be reasonably arguable in this case that the decision of Miss Thompson to apply for C’s admission would be found to have been taken in bad faith or without reasonable care, given the medical recommendations that she had, even though she may well have known that the Section 3 application would not in fact be possible because of the objection of the nearest relative.  

Equally, I do not think it would be reasonably arguable on the facts that either of the doctors could not have reached the view in good faith and with reasonable care that C’s detention was warranted for assessment followed by treatment, even though one of them, Dr. Gupta, had taken the provisional view a few days earlier, without making any positive recommendation, that C’s illness was sufficiently severe that it was appropriate for him to receive treatment in hospital.

	Obviously the period of treatment under Section 3 is potentially longer than that of detention under Section 2, and no doubt for that reason the consent of the nearest relative is needed under that Section, whereas it is not under Section 2.  I see no reason why a doctor in the position which Dr. Gupta found himself on Monday 31st January should not reasonably and in good faith take the view that his grounds for thinking that a patient’s disorder warranted detention for assessment followed by treatment and to recommend accordingly, even if he thought that in the end the Section 3 admission possibly for a longer period would almost inevitably follow. 

	In my view, therefore, I should refuse leave to C to begin proceedings under Section 139(2).  

In reaching this conclusion, I have born in mind the case of R v. Wilson ex parte Williamson (1996) Crown Office Digest 42, where Tucker J. held that sequential admissions under Section 2 were impermissible and that, accordingly, a patient could not be detained for two such sequential periods for assessment under that Section.  

As noted in the Crown Office Digest, what happened in that case was that the patient had been admitted informally and wanted to discharge himself. The doctors decided to detain him under Section 5(2), but his father would not agree to detention compulsorily.  Thereafter he was admitted under Section 2. There was no contention that his first admission under Section 2 was objectionable.  As the period of assessment lapsed, the medical team still considered him too dangerous for release, but he and his father maintained opposition to compulsory detention. Thereupon the approved social worker made a second application for admission under Section 2.  

The applicant for Judicial Review, the detained patient, submitted through counsel that Sections 2 and 3 were mutually exclusive, and one excluded the other.  Although the report is short, the learned Judge seemed concerned that the procedure under Section 2 was not intended to last beyond the 28 day period, and could not be used to circumvent the procedure for more lengthy admission under Section 3.  However, it is not clear to what extent or at all he acceded to the submission by counsel for the applicant as to the mutual exclusivity in all the circumstances of Sections 2 and 3.  It does not seem to me, however, that this decision means that it must always be impossible for a first admission to be made under Section 2 in the circumstances of a case like this, where at least one of the doctors may have thought informally that Section 3 admission might in the long run be desirable.

	Other authorities were mentioned to me about the operation of Section 6 of the Act on the effect of an application for admission and its exoneration in some circumstances of those acting in reliance upon them.  But I was not taken to those cases, which would appear, therefore, not to be directly relevant to the questions that I have to decide.

	I would hold, therefore, that so far as necessary leave should not be granted to the applicant under Section 139 to begin these intended proceedings.  In so far as the provisions of Section 139 do not, by virtue of Section 139(4), apply to the proposed proceedings against the First Defendant, in my view such proceedings would be bound to fail if begun, for much the same reasons as I have already given in relation to the statutory jurisdiction.  Accordingly, if begun I believe it is inevitable that they would either be struck out under Rule 3 of the Civil Procedure Rules, or judgment would be given in favour of the Defendants on the basis that C has no real prospect of succeeding in the claim.

	In so finding, I do not forget the short submission made to me that the Defendants acted without any statutory authority at all for some few hours on 31st January before admission procedures were finalised. The Defendants maintained, in short, that they had power of common law so to act.  The submissions on either side on this point were left undeveloped, and therefore I cannot think that it would be right to allow proceedings to continue in respect of this very short period when challenge to the longer detention is bound to fail.  Here, to my mind, I am entitled to have regard to the overriding objective, and to take into account the use of time and resources in deciding the issue which, even if resolved in the Claimant’s favour, would only sound in nominal damages.

	My decision in this case, which turned in the end on C’s claim not having real prospects of success, or not having a force worthy of further investigation, does not detract from my observation at the end of the hearing, that I have been fortunate in this case to have listened to quite excellent arguments from all three counsel who appeared before me last Friday, including counsel on behalf of C.